Judge orders Texas to release information on execution drugs

Judge rules 2 condemned inmates have right to know, but won't make information public

Mike War, Houston Chronicle

By Mike Ward

Updated 9:56 pm, Thursday, March 27, 2014

Ramiro Hernandez-Llanas is shown in this image provided by the Texas Department of Criminal Justice. A judge ordered Texas prison officials Thursday, March 27, 2014, to disclose the supplier of a new batch of lethal injection drugs to attorneys for convicted killers Hernandez-Llanas and Tommy Lynn Sells, both set to be executed in April, 2014, but she stopped short of revealing the identity of the manufacturer to the public. (AP Photo/Texas Department of Criminal Justice)
Photo: HOPD

Ramiro Hernandez-Llanas is shown in this image provided by the...

File - In this Jan. 11, 2000 file photo provided by the Val Verde County Sheriff, Tommy Lynn Sells is shown. A judge ordered Texas prison officials Thursday to disclose the supplier of a new batch of lethal injection drugs to attorneys for convicted killers Sells and Ramiro Hernandez-Llanas, both set to be executed in April, 2014, but she stopped short of revealing the identity of the manufacturer to the public. (AP Photo/Val Verde County Sheriff, File)
Photo: Anonymous, HOPD

AUSTIN - Texas prison officials were ordered Thursday to disclose to attorneys for two execution-bound convicts the supplier of a new batch of lethal injection drugs to be used to kill them.

But state District Judge Suzanne Covington declined to make the information public, agreeing with the state's argument that disclosure would threaten the future availability of pentobarbital.

Past court decisions and rulings by the state attorney general have held that the identities of the suppliers and details about the drugs, including amounts and costs, are public information. But after recently announcing that they had obtained a new supply of pentobarbital, to replace existing supplies that expire April 1, state officials had refused to release those details.

The two condemned killers - Tommy Lynn Sells and Ramiro Hernandez Llanas - are scheduled for execution in April. They filed a lawsuit Wednesday seeking information on the execution drugs, arguing that they have the right to know about the suppliers and the drugs that will end their lives.

During a morning court hearing, Assistant Attorney General Nicole Bunker-Henderson said recent threats against unidentified execution drug manufacturers necessitates the secrecy, and that a recent threat assessment by police agencies suggests that pharmacists who are making the drugs might face physical danger.

"The circumstances have changed from 2012," Bunker-Henderson told the judge. "We can show there's evidence out there that there has been a significant, real, concrete threat to similarly situated pharmacists."

But Austin attorney Philip Durst, representing the condemned men, said they have a right to know the origin of the drugs and other details about doses and purity. He challenged the state's assertion that the information should remain a state secret, saying the prisoners cannot evaluate their right to know whether their execution could result in unconstitutionally cruel pain.

"Maybe this stuff was laced with strychnine off the street," Durst said. "We don't know, and they need to know before they inflict the ultimate penalty."

Thursday's courtroom drama was the latest development in an increasing fight by states nationwide to keep details from the public about execution drugs, including suppliers' names, amounts on hand, dosages and even the amount of taxpayer money being spent on them.

Several states have passed laws keeping secret the information that just a few years ago was routinely made public.

One reason is an aggressive campaign by death penalty opponents to cut off the drug supplies, first by successfully lobbying U.S. pharmaceutical firms to stop making the drugs most commonly used or to move the manufacturing overseas. In the past two years, European countries that oppose the death penalty have blocked shipments of drugs to be used in U.S. death chambers.

Texas, which has the busiest death chamber in the United States, has been at the forefront of the continuing jockeying for suppliers. Like several other states, it was forced to switch from a three-drug combination to a single overdose of pentobarbital to carry out executions.

In the past year, supplies of the powerful sedative for executions have become increasingly hard to come by, forcing Texas and other states to resort to having the doses custom made at so-called compounding pharmacies in Oklahoma and other states.

In the past three years, Texas prison officials have lost attempts to keep secret information about its suppliers and other details of the drug purchases. The agency lost its previous supplier in The Woodlands after the compounding pharmacy's name was made public, and after officials reported the firm had received threats from death penalty opponents.

Oklahoma ruling

In court on Thursday, state officials insisted the new secrecy would protect both the supplies and the suppliers.

Sells is scheduled for execution on April 3, and Hernandez Llanas on April 9.

Sells, 49, was sentenced to death in a 1999 throat-slashing attack at a home near Del Rio that left one girl dead and a second critically wounded. Hernandez Llanas, 44, was given a death sentence for the 1997 beating death of a Kerrville rancher for whom he worked as a hired hand.

On Wednesday, an Oklahoma judge voided that state's execution law because of a provision that keeps the names of execution drug suppliers confidential. The judge agreed with convicts' assertions that a "veil of secrecy" blocking them from seeking information about the lethal drugs violates their constitutional rights to have access to that information.

Oklahoma corrections officials said Thursday they plan to appeal that decision.

Oklahoma is among several states that have promised suppliers confidentiality. Arkansas and Missouri passed laws to keep execution drug details secret, and those statutes have triggered court challenges.